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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204 I

Name: AJAELU, CHARLES BORROMEO

A 058-739-058
Date of this notice: 9/3/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOWtL

ca.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Geller, Joan B

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Charles Borromeo Ajaelu, A058 739 058 (BIA Sept. 3, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

OHS/ICE Office of Chief Counsel - ATL


180 Ted Turner Dr. SW, Suite 332
Atlanta, GA 30303

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A058 739 058 -Atlanta, GA


In re: CHARLES BORROMEO AJAELU

Date:

SEP - 3 2015

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF OHS: Gene P. Hamilton
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony as defined in section 101(a)(43)(G) of the
Act

APPLICATION: Termination
The Department of Homeland Security (DHS) appeals the Immigration Judge's May 5, 2014,
decision finding that the respondent was not removable as charged and terminating the
proceedings. The appeal will be dismissed.
We review for clear error the Immigration Judge's findings of fact, including the
determination of credibility. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues de novo,
including whether the parties have met the relevant burden of proof and issues of discretion.
Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008); 8 C.F.R. 1003.l(d)(3)(ii).
The DHS charged the respondent with removability under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act based on a conviction for an aggravated felony theft offense.
Specifically, the OHS argues that the respondent's conviction for theft by taking under Ga.
Code 16-8-2 constitutes an aggravated felony under 10l(a)(43)(G) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(43)(G). 1 We affirm the Immigration Judge's conclusion that
the DHS did not meet its burden of proof.
The Georgia statute is overly broad and punishes offenses not included in the generic
definition of theft. See Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008) (finding that a
''theft offense" under section 101{a)(43)(G) of the Act requires the tal<lng of, or exercise of
1

We note that the conviction documents do not provide a citation to a Georgia statute. The
statute of conviction does not appear to be in dispute however, and given our disposition we find
it unnecessary to determine if the record sufficiently establishes the respondent's conviction.
Cite as: Charles Borromeo Ajaelu, A058 739 058 (BIA Sept. 3, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

-f ..

A058 739 058

Further, the statute is not divisible, it is simply overbroad. See Descamps v. United States,
133 S.Ct. 2276 (2013). Accordingly, we cannot apply the modified categorical approach and
look to the record of conviction to determine whether the respondent was convicted under that
portion of the statute that does define a theft for the purposes of section IOI(a)(43)(G) of the Act.
Id. We instead must conclude, in agreement with the Immigration Judge, that the respondent's
offense is not categorically a theft offense for the purposes of section 10l(a)(43)(G) of the Act.
The following order will be entered.
ORDER: The appeal is dismissed.

FOR THE BOARD

2
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Cite as: Charles Borromeo Ajaelu, A058 739 058 (BIA Sept. 3, 2015)
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control over, property without consent). Ga. Code 16-8-2 extends to offenses that fall outside
the definition of "theft" for the purposes of section 10l(a)(43)(G) of the Act. The Georgia
statute states that a person commits the offense of theft by taking "when he unlawfully takes or,
being in lawful possession thereof, unlawfully appropriates any property of another with the
intention of depriving him of the property, regardless of the manner in which the property is
taken or appropriated." The Georgia courts have stated that the final phrase of the statute,
"regardless of the manner in which the property is taken or appropriated," is a catch-all phrase
rendering the statute broad enough to encompass theft by conversion, theft by deception, or any
of the "myriad and even yet-to-be-concocted schemes for depriving people of their property."
Spray v. State, 476 S.E.2d 878, 880 (Ga. App. 1996). In addition, the courts have sustained
convictions under the statute in cases that involved fraud or deception rather than a lack of
consent of the victim. See, e.g., Ray v. State, 299 S.E.2d 584 (Ga. App. 1983).

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT

In the Matter of

CHARLES BORROMEO AJAELU


RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act.

APPLICATIONS:

Motion to terminate.

ON BEHALF OF RESPONDENT: PRO SE


ON BEHALF OF OHS: JOY LAMPLEY

ORAL DECISION OF THE IMMIGRATION JUDGE


This case came before the Court as a result of a Notice to Appear that
was issued by the Department of Homeland Security. The charging document alleges
that the respondent is a native and citizen of Nigeria and that he is removable from the
United States pursuant to Section 237 of the Immigration and Nationality Act.
The Government bears the burden of showing that the respondent is
removable in this case. At today's hearing, the Government served the Court and the
respondent with a copy of the respondent's conviction. The Government takes the
position that respondent has been convicted of a theft offense based on his conviction

Immigrant & Refugee Appellate Center, LLC | www.irac.net

May 5, 2014

File: AOSB-739-058

under OCGA 16-8-2. The Court finds that the respondent's conviction is not a theft
offense. The Court relies largely on an unpublished decision by the Board in Matter of

respondent's conviction in the context of a crime involving moral turpitude. Largely, the
Court noted in that decision, that under 16-8-2, a person commits an offense of theft by
taking when he unlawfully takes or being in unlawful possession thereof, unlawfully
appropriates any property of another with the intention of depriving him of his property,
regardless of the manner in which the property was taken or appropriated. Respondent
is convicted under a statute that is overly broad. The statute criminalizes not only
taking, but also appropriating of property. That is not within the common law definition
of theft by taking. The respondent's conviction is therefore not a theft offense.
Regardless of whether the respondent was sentenced to more than one year in prison,
the fact is he has not been convicted of a theft offense in the generic sense of the word.
The Court therefore finds that the respondent's conviction under a statute that allows for
convictions where the State shows only appropriating, is not a theft offense. The
respondent is therefore not removable. The Court will therefore not sustain the charge
of removal in this case and the Court will terminate the proceedings.
ORDER
IT IS HEREBY ORDERED that the proceedings against the respondent
be, and hereby is, terminated.

Please see the next page for electronic


signature

A058-739-058

EARLE B WILSON
Immigration Judge
2

May 5, 2014

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Reyes, A 091 156 708 (BIA 2013). In that case, the Court addressed the issue of

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May 5 1 2014

AOSS-739-058

I.

/Isl/
Immigration Judge EARLE B WILSON

A058-739-058

Immigrant & Refugee Appellate Center, LLC | www.irac.net

wilsone on July 31, 2014 at 11:46 AM GMT

May 5; 2014.